The changes proposed by the government regarding the extension of court supervision over operational control carried out by the services will, in practice, be impossible to implement without increasing the number of judges, judge Ireneusz Szulewicz said in an interview with PAP.
The government's proposal for changes to the law, which are intended to increase supervision over operational control, has been submitted to the Parliament. In addition to deciding whether to consent to wiretapping and other forms of surveillance, the court would have the right, among other things, to: obtain information about the ongoing inspection or decide to discontinue it.
The chairman of the 18th Criminal Division of the District Court in Warsaw is one of the judges who assess the services' applications regarding operational control.
According to Chairman Szulewicz the key barrier of the system in its current shape and expanded in the prepared change in practice is too few judges and excessive centralization of the examination of applications in one court – Warsaw district court.
Judge Szulewicz is of the opinion that although formally, in accordance with the proposed provisions, the court may interrupt operational control, in practice there will be no mechanisms enabling its actual and ongoing verification. He recalled that currently the judges who hear applications for operational control and decide on them are on duty in a secret registry, change and do not return to the same cases.
According to the judge, the organizational realities are not taken into account by the accusations of the media or politicians who wrongly portray the courts as institutions that “automatically accept” the services' requests and are too hasty in agreeing to operational control.
– This is a simplified and unfair picture. Judges act based on trust in the information contained in applications for consent to inspection, because at this stage there is most often no evidence in a given case yet, he emphasized.
– This is not a case with a hundred volumes of files sent by the prosecutor, where I am able to evaluate the evidence. There is no such evidence in the application for operational control, because it concerns a situation when there is a suspicion that it may be a crime, and this is a way to collect evidence of it – he explained.
He recalled that, pursuant to laws, all secret services and their units from all over the country submit applications for consent to operational control to the Warsaw district court. This applies not only to the Internal Security Agency and the Central Anticorruption Bureau, but also to the police Central Bureau of Investigation, regardless of where the case is actually conducted.
– With such a number of cases and a limited number of judges, it is not possible to conduct a real, in-depth review – the judge noted in an interview with PAP.
In his opinion, as a practice, a solution could be to divide competences among all district courts according to the criterion of the unit conducting the proceedings, which would relieve the Warsaw court. Another solution, in his opinion, would be to create a separate department in the Warsaw court, which, however, would not solve the basic problem – the lack of judges.
The judge emphasized that the vast majority of requests for operational control are justified and concern mainly common crimes – drug trafficking or organized crime. At the same time, he admitted that the abuses revealed in recent years – including those related to the use of advanced surveillance tools – have undermined trust in some services.
In his opinion, the obligation to justify consent to operational control, introduced by the regulation of December 2024 and now included in the draft act, is apparent. – One sentence is enough as a justification – that the application is justified, which does not change the essence of the matter – he pointed out.
No technical conditions during the operation
As a practitioner, the judge also drew attention to the lack of technical conditions for verifying operational materials, when there is only one computer available in the court's secret office that all judges must use.
– Unfortunately, these regulations on the control of services' activities look good on paper, but they completely ignore the realities – said the chairman. – Without increasing the number of judges and creating specialized departments, such solutions are unfeasible – he told PAP.
During the legislative work on the project, a positive opinion was issued by, among others, The Parliamentary Committee for Secret Services, however, pointed out that the courts may be unprepared in terms of personnel and organization to implement these provisions. The authors also noted in the documents attached to the project that: units dealing with operational control issues in courts will have to be strengthened. The relevant district prosecutor's offices will also have additional tasks related to the analysis of court decisions to discontinue the application of operational control. – they pointed out.
The government bill was adopted on March 31 and sent to the Sejm; On April 2, it was submitted to the Legislative Office for an opinion and is waiting for the form number.
The draft act on extending judicial supervision over operational control unifies the rules for its conduct by all authorized services, including: police, military police and special services. The most important proposed changes include the introduction of an obligation to inform the court about the results of the operational inspection after its completion, and, at its request, also about the course of the inspection during its duration – the court then receives the materials collected during the inspection. Until now, only the competent prosecutor had such control rights.
The court and the prosecutor will have the right to discontinue the application of operational control at any time after obtaining information about its course, the draft states. An obligation to inform the court, and not – as before – only the prosecutor, about the destruction of materials whose use in criminal proceedings is unacceptable has also been added. The court will also receive information about the destruction of materials that do not constitute information confirming the occurrence of a crime.
The project assumes mandatory justification of the court's decision regarding operational control, regardless of whether it is consent or refusal.
Operational control is carried out covertly and involves obtaining and recording the content of conversations conducted using technical means, including telecommunications networks; obtaining and recording images or sounds of people from rooms, means of transport or places other than public places; obtaining and recording the content of correspondence, including correspondence conducted via electronic means of communication; obtaining and recording data contained in IT data carriers, telecommunications IT and ICT devices; gaining access and controlling the content of shipments.
According to the draft, the new act is to enter into force 30 days after its announcement.
Aleksander Główczewski (PAP)
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